Will secret copyright treaty restrict digital rights?

Jeff Porten |
Nov. 23, 2009

Various nations, including Australia, Japan, Korea, and Singapore, among others, are said to be negotiating ACTA now, with the goal of passing a joint treaty to protect intellectual property sometime in 2010.

On to a short course in international law. Under the U.S. Constitution, when American representatives sign a treaty, it must be passed in the Senate; afterward, the language of the treaty has the force of law in the United States. However, some treaties can be negotiated under "fast track" authority, which essentially states: "if the President and the Executive branch have the authority to implement the treaty without Congressional action, they have the authority to sign the treaty." (Lawyers, please note: I am not one.) If it later becomes necessary to pass a U.S. law to conform to the terms of the treaty, it's pretty much a given that the treaty's language is going to form the baseline of its text; make too many changes, and you have to send your diplomats back to the negotiating table.

ACTA is being negotiated under the fast-track authority, which means that it could be signed and enforced with the only notice being a buried headline in the New York Times. The EFF has published a law journal article with four extremely abstruse recommendations for how to open up the process to democratic debate; I recommend it to anyone who can make heads or tails of a law journal article.

For everyone else, though, it's probably a good time to pay attention, and perhaps make some noise. Ironically, it's going to be very difficult to report more on ACTA here, because so few facts are being leaked; I can report the process as news, but followup articles are hard to write without relying on rumor and innuendo. So get in touch with groups like the EFF which are lobbying on the issue, and perhaps read Boing Boing (where Cory Doctorow can be counted upon to provide up-to-the-minute coverage and leaks in informative but apocalyptic style). Call your Congresspersons and let them know you're fond of the Internet and how it works. (Residents of Alaska, please note: Ted Stevens is not your Senator any longer, so it's no longer a series of tubes.) Secret laws and closed-door negotiations have a track record of working well only when citizens are too apathetic or distracted to care much; if this is an issue that concerns you, let people know.